Did the ATF Walk Guns to Mexico in Fast & Furious?

US Attorney General Eric Holder attends a press conference at the US Attorney's Office in New York, January 20, 2011.
(Emmanuel Dunand
/ Getty)

Jul 3, 2012

The "Fast and Furious" scandal that has resulted in a U.S. Attorney General being held in contempt of Congress for the first time in history may not have happened if not for Arizona's lax gun laws, according to a six-month investigation by Fortune reporter Katherine Eban.

"In Arizona, if you're 18 and you have no criminal record, you can go into a gun store and legally purchase 50 AK-47s and pay cash," Eban said on Tuesday's Brian Lehrer Show. "The kids doing that are often suspected straw purchasers recruited by drugs cartels to buy guns."

Of course, an 18-year-old isn't a "kid" in the eyes of the law. These are adults purchasing guns—but Eban stressed that some of them aren't even old enough to buy beer yet.

Eban's reporting is potentially a game-changer for the investigation into what went wrong, and for the fate of Attorney General Eric Holder, whom Congress voted to hold in contempt last Thursday. The contempt vote came about after Holder refused to turn over documents related to Fast and Furious that have been requested by House Republicans.

But Eban's reporting has also ignited a debate about gun control a mere four months before a presidential election. In her article, she effectively refocuses the whole debate about what Fast and Furious was and who fouled up the operation. She charges that ATF agents only allowed guns to get from Arizona to Mexico because agents were hamstrung in their efforts to seize guns and prosecute straw purchasers any sooner in the process.

Here's the deal

Mexico prohibits the commercial sale of firearms. The United States doesn't. And in Arizona, Eban said, it's especially easy to buy guns.

"In Maricopa County, which is the area around Phoenix, there are 853 licensed firearms dealers. The border is 200 miles away," Eban said. "If drug cartels want weapons, which they do, Phoenix is their gun supermarket."

Availability and proximity aren't the only considerations for cartels, Eban claims. Arizona doesn't require you to have a permit to purchase either long guns or handguns. Many kinds of guns don't even need to be registered; the kinds that do are spelled out in the National Firearms Act, and include machine guns short-barreled shotguns and rifles, silencers, and explosives.

There is no owner licensing required, even for the guns regulated by the National Firearms Act. There is no assault weapons ban.

Guns are easy to buy, but there's one restriction on purchases that ATF agents expected to rely on when their investigation began. They could have stopped any guns bought by straw purchasers that they knew were going to be handed off to someone else—but state laws make it extremely hard to prove the buyer's intent to transfer at the point of sale.

"When you go buy a gun, you fill out a form called a 4473," Eban told Brian Lehrer. "You have to certify on that form that you're buying the guns for yourself. If you certify falsely that you're buying guns for yourself, that’s a felony. However, prosecutors [consulted by the ATF agents] made the judgment call that because those kids were the rightful owners of those guns, even if they transferred the guns to someone else, those were legal transfers."

In other words, because "those kids" could change their minds after purchasing the guns, it was impossible for agents to seize them legally before the transfer took place.

Since the law stymied agents' initial plan for seizing guns, Eban said, they had to resort to allowing guns embedded with GPS devices to get into the hands of cartels, and essentially wait until a crime was committed with the weapon. Most often, this meant waiting for the guns to reach the Mexican border. Eban said that the ATF agents indeed seized many weapons with this tactic.

But an ATF agent is also dead, partially as a result of the delayed seizure tactic. Bryan Terry was killed in 2010, and two guns left at the scene were traced back to purchases by suspects of the ATF's investigation—suspects the ATF was watching, but couldn't arrest at the time.

What the ATF said

That's not the only question people are asking. Brian Lehrer pointed out that a memo from the leader of the ATF investigation dated January 2010 read, "Currently our strategy is to allow transfer of firearms to continue to take place, albeit at a much slower pace, in order to further the investigation, and allow for the identification of additional co-conspirators."

These do not appear to be the words of an agent frustrated by state laws and resorting to a less-than-optimal tactic. Why didn't the agent spell out that his unit had no choice in the matter?

"I don't think that you use that language in a briefing memo to supervisors," Eban explained. "He is in a position of having to explain to his supervisors, alright, if we can't do Plan A, what is Plan B?"

Eban said that the Plan B they adopted was provided for by the ATF rule book.

What will the Obama administration do next?

Eban's reporting could allow the Justice Department and the Obama administration to push back against Congressional Republicans, who have vilified both in the wake of the scandal. The administration could talk about gun laws and try to explain away the narrative that's been built up over the last year. But Eban doesn't predict that will happen.

"I think it would be incredibly difficult for the administration to walk this back at this point, because one of the reasons I think it got so messed up in first place is they didn’t want to have a discussion about gun control, or guns, or gun laws in the run-up to a presidential election."

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